Dwarka Prasad Gupta, J.
1. M/s. Bikaner Gypsum Ltd., Udaipur (hereinafter referred as 'the Company') is engaged in mining business and owns a rock phosphate mines at Jamer Kotra in Udaipur district in the State of Rajasthan. The Company is also running a canteen at the mines for the benefit of its workmen employed at the mines. The work of canteen was earlier supervised by two Supervisors but the canteen was not functioning satisfactorily. On November 27, 1971, the Company employed respondent No. 2 Mahesh Chandra Sharma on a newly created post of Canteen In-charge on a 'purely temporary basis' for a period of 6 months with effect from December 1, 1971, to look after the Company's canteen at Jamer Kotra. The appointment of respondent No. 2 was made on the condition that on the expiry of the period of 6 months his temporary appointment shall automatically stand terminated. According to the Company, the post of Canteen In-charge was created on an experimental basis with a view to improve the working of the canteen run by the Company for the benefit of the workers at the mines. Before the expiry of the period of 6 months, the Company by its letter dated May 25, 1972 extended the period of appointment of respondent No. 2, Mahesh Chandra Sharma. on the post of Canteen In-charge for one month with effect from June 1, 1972, on a purely temporary basis, with the condition that the services of the respondent No. 2 will automatically stand terminated on the expiry of the extended period of his temporary appointment. On June 28, 1972, the Company intimated the respondent No 2 that his service was no longer required by the Company and as such his service was terminated with effect from June 30, 1972. According to the Company, on a representation submitted by respondent No. 2, the Company withdrew the order of termination of the service of respondant No. 2 and by its letter dated June 30, 1972 he Company informed the respondant No. 2 that his service would be continued till further instructions. It was also mentioned in the letter dated June 30, 1972 sent by the Company to the respondent No. 2 that he was advised to improve his performance. Thereafter, by the letter of the Company dated September 14, 1972, the service of the respondent No. 2 was terminated with immediate effect.
2. On the request of the workman, the Central Government referred the following dispute to the Central Government Industrial Tribunal, Jabalpur, for adjudication:
Whether the action of the management of Jhamarkotda Rock Phosphate Mines of M/s Bikaner Gypsum, Udaipur in terminating the services of Shri Mahesh Chandra Sharma, Canteen In-charge, was legal and justified? If not, to what relief is he entitled
Both parties filed their written statements and led their evidence before the Central Government Industrial Tribunal at Jabalpur (hereinafter referred to as 'the Tribunal'). The Tribunal by its order dated April 22, 1974 held that the management did not produce any evidence to substantiate its contention that the performance of respondent No. 2. Mahesh' Chandra Sharma (hereinafter called 'Sharma'') was unsatisfactory. According to the Tribunal, the very fact that his term of employment was extended by the Company would indicate that Sharma's work as Canteen In-charge was satisfactory. The Tribunal further held that although initially respondent No 2 was appointed on a temporary basis, yet there is sufficient evidence on record to indicate that the post of Canteen In-charge was not a temporary' post, but it appears to be a permanent post and that a mere change of designation from 'Canteen Incharge to supervisor' did not make any difference, in as much as the Supervisor continued to perform the same work which was earlier performed by Sharma and this fact went to show that the post was not abolished but merely the designation was changed. Sharma worked for 9 months and 14 days and the termination of his service could have been brought about by giving him one month's notice by the management. The Tribunal held that as no notice was given by the Company terminating the service of Sharma the termination of his employment was invalid and that Sharma was entitled to be reinstated to his post as Canteen Incharge. The Tribunal, therefore, held that the termination of service of Sharma by the Company was illegal and was not justified and Sharma was entitled to be reinstated to his post and he must be paid his back wages together with usual allowances. The aforesaid order passed by the Tribunal, has been challenged by the Company in the present writ petition.
3. Learned Counsel for the Company, Mr. Deedwania argued that the post of Canteen Incharge was temporarily created at the mines of the Company, but the canteen was run earlier to the appointment of Sharma by two Supervisors. As the canteen was not running properly, the post of Canteen In charge was nearly created on an experimental basis and Sharma was appointed on that post on a purely temporary basis, in order to improve the working of the canteen. According to the learned counsel for the Company, the performance of Sharma from the very beginning was not satisfactory and he was given several warnings and several letters were written to him by the Company to improve his performance. The service of Sharma was terminated by the letter dated June 22, 1972 with effect from June 30, 1972 but on the representation of the workman, the period of his service was extended 'until further instructions' with a warning to him to improve his performance. But as Sharma failed to show any improvement, his service was ultimately terminated with effect from September 14, 1972. Thus, according to the learned counsel for the Company, the post of Canteen In-charge was a temporary post created on an experimental basis and according to him the post was also abolished immediately after the order dated September 14, 1972 terminating the service of Sharma was passed. Thus, not only that the post was of a temporary nature, Sharma was also given a temporary appointment initially for a period of 6 months which period was extended by one month and then further extension was made without specifying the period, 'until further instructions', which according to the learned counsel, also made the post as well as the employment of Sharma as temporary. It was argued by the learned Counsel that the finding given by the Tribunal that performance of Sharma was satisfactory was without any foundation, as there is no material on record to show that service rendered by Sharma was satisfactory. On the other hand, it is in evidence that Sharma was given several warnings, which showed that his performance was unsatisfactory and that he also remained absent from his work and was negligent in the performance of his duties. It was also argued by learned counsel for the petitioner that the Tribunal erred in holding that the post of Canteen In-charge was not a temporary post but was a permanent post. Learned counsel also argued that as Sharma did not render continuous service for not less than one year, the mere fact that he remained in employment for a period of 9 months and 14 days was not sufficient, unless it was shown that he bad actually worked for a period of 240 days during the last 12 months or a calendar year, preceding the date of termination of his employment. According to the learned counsel for the petitioner the service of any notice upon Sharma before terminating his service was not necessary and the finding of the Tribunal that the termination of Sharma's service was illegal was erroneous.
4. Mr. Singhvi, learned counsel for Sharma tried to defend the order passed by the Tribunal and submitted that the Company did not have any certified standing orders and as such the model standing orders contained in Schedule I appended to the Industrial Employment (Standing Orders) Central Rules, 1946 (hereinafter called 'the Rules') shall be deemed to have been adopted in the establishment, by virute of the provisions of Section 12-A of the Industrial Employment (Standing Orders) Act, 1945 and that Sharma was a permanent workman, according to the classification of work in Clause 2 of the model standing orders. Learned counsel argued that even if respondent No.2 was taken to be a probationer, then after the expiry of the months he became the permanent workman and as such notice of one month was required to be given for terminating the employment of Sharma in, accordance with Clause 13 of the Emplyees Standing Order. Learned counsel also argued that the post of Canteen In-charge was a permanent post and there were two Supervisors earlier, who performed the work of Canteen In charge before Sharma's appointment and the same work was performed by three Supervisor's after the termination of Sharm's service. Learned counsel submitted that mere change of nomenclature would make no difference and it was of little consequance as to whether the person looking after the work of canteen was called a 'Canteen Incharge' or' 'Supervisor' so long as such person performed the same duties. Learned counsel drew my attention to the definition of 'temporary', contained in Clause 2 of the Employees Standing Orders and argued that as the case of Sharma did not fall under the other categories of 'Badli', 'temporary', 'casual' or apprentice', he was necessarily a permanent workman. Learned counsel asserted that the post of Canteen Incharge was not abolished but merely the designation was changed to that of Supervisor.
5. It is indisputable that the post of Canteen In-charge did not exist prior to the appointment of respondent No.2 and it cannot also be denied that the post ceased to exist or was abolished after the service of Sharma was terminated. The Tribunal has observed that the Canteen, even after the termination of the service of Sharma, was run by a Supervisor and that there was merely a change in the designation from canteen in-charge to that of Supervisor, as the person who took over from Sharma was doing the same work which was performed by Sharma as Cantten In-charge. According to the admission of Sharma himself before the Tribunal, the work of managing the canteen was looked after by two Supervisors before his appointment as Canteen-incharge and after his service was terminated, one more supervisor was appointed and three Supervisors looked after the work of the canteen by shifts. In these circumstances, it was apparently erroneous for the Tribunal to hold that the working of Sharma was carried on by a Supervisor, after the termination of his service. According to the pleadings of the parties, the respondent No.2 was given an independent and complete charge of the work of the canteen and, therefore, he was designated as Canteen Incharge. Each one of the two Supervisors, who were working prior to the appointment of Sharma, merely looked after the work of the canteen during one shift only. Similarly three Supervisors were looking after the work of the canteen in shifts after the termination of Sharma's service. Thus a Supervisor looked after the work of the canteen during one shift only, while Sharma was placed in an over-all charge of the canteen and he looked after its work in all the shifts. Therefore, there is no justification for equating the post of a Canteen Incharge with the post of Supervisor. It is not denied that the post of Supervisor was in a lower grade than the post of Canteen Incharge, on which Sharma was employed. It appears from the record that when Sharma was initially exmployed as Canteen Inchage with effect from December 1, 1971, he was placed in the same grade as that of a Supervisor, namely 100-5-115-7.50 145-EB-10-225, but soon thereafter, from January 1, 1972 the post of Canteen Incharge carried the pay scale of 150-12-210-14-350, while the post of Supervisor was placed in the lower grade of 125 9 170-10-270. Thus, there was not merely a change in the designation of nomenclature of the post, but there was substantial difference in the status and emoluments as well the nature of duties of the two posts, of Supervisor and Canteen Incharge and while the post of Supervisor was in a lower grade and the Supervisor merely looked after the work of the canteen during one shift, the Canteen Incharge was a post created in a higher grade with the expectation that as Canteen Incharge Sharma would look after the entire work of the canteen and he was given an independent charge of the canteen. The petitioner appears to be justified in stating that the post of Canteen Incharge was newly created on an experimental basis with a view to improve the working of the canteen, but as Sharma did no perform his duties satisfactorily and the work of the canteen did not improve, his service was terminated and the newly created post of Canteen incharge was abolished. The finding of the Tribunal that the post of Canteen Incharge was not of a temporary nature but was a permanent post cannot be upheld and it appears to be correct that Sharma was employed on a temporary basis, on a temporary post created on an experimental basis. It is not disputed that Sharma was the only occupant of the post and said post also ceased to exist with the termination of service of Sharma. The post was thus created only on a trial basis and the same could not be held to be a permanent post. Ld. counsel appearing for Sharma was unable to point out any evidence on record to show that the post of Canteen Incharge was not a temporary post.
6. So far as the appointment of Sharma is concerned, it is undisputed that his initial appointment was a temporary one, for a period of 6 months. It was a fixed term appointment, which according to the terms of the contract was to come to an end automatically on the expiry of the period of six months. Then the period of his employment was extended by one month, on the expiry of which his service was terminated. Thereafter, on June 30, 1972 the employment of Sharma was extended 'until further instructions' and at the same time he was also advised to improve his performance. According to the petitioner this extension was granted to Sharma on his understanding and on the understanding that he will improve his performance. But Sharma failed to show any good results and his service was finally terminated with effect from September 14, 1972 by the order Annexure 5. Even if, after the expiry of the fixed tenure of temporary service, the appointment of Sharma on the post of Canteen Incharge was extended 'until further instructions', it may be presumed that he was provisionally appointed on the post of Canteen Incharge, then also Sharma did not successfully complete three months' probationary period, which was required for the conversion of his temporary employment into that of a permanent workman. The Rajasthan Industrial Employment (Standing Orders) Rules, 1963 also provided for workmen provisionally employed, besides those employed temporarily or permanently. The Tribunal appears to be justified in holding that Sharma could not be classed as temporary, as he was not appointed on a job essentially of temporary nature, which was likely to be finished within a short span of time. The work of Canteen Incharge could not be held to be essentially of temporary nature, even though the post was created on temporany-basis and was continued after June 30 1972 on an experimental basis. When Sharma's appointment was extended 'until further instructions', it could not be held that he was engaged for a work which was of temporary nature and was likely to be finished within a limited period. In case Sharma would have performed his work satisfactorily, and he would have continued on the post, the Company could not have abolished the said post and ultimately the same would have to be converted into a permanent post. So far as a fixed time or term appointment is concerned, it could come to an end automatically on the expiry of the period for which the appointment was made in that case no notice of termination was required to be given to the workman concerned. It is only in the cases of workman men who are classified as permanent, temporary, probationer, casual, Badlior apprentice, that the termination of their employment can be brought about in accordance with the conditions continued in clause 17 of the Rules of 1963. If Sharma would have been a permanent workman or a temporary workman and would have comeleted not less than one year of continuous service, then his case would have fallen within clause 17 of the Rules of 1963, as well as within the provisions of Section 25F of the Industrial Disputes Act. I will ded with the question of one year of continuous service a little later, but as Sharma could at best be held to be a probationer, who was employed on a temporary post, he could not become a permanent workman for two reasons. In the first place, Sharma was engaged on a temporary basis. There is nothing on the record to show that his employment was at any time considered as 'permanent', either by the employer or by the employee. In the second place, the respondent No. 2 did not satisfactorily complete the probationary period of 3 months. He was appointed with effect from December 1, 1971 but from Febuary 1971 the employer had a complaint against him and notice and warnings were given to him right from January 7, 1972 to July 6, 1972. The employer complained that Sharma did not perform his duties properly and that he was absent from duty or was negligent in the performance of his duties, as he was not found at the place of his duty viz. the canteen. Even in the letter extending the period of his temporary service, Sharma was advised to 'improve his performance'. Thus, it is clear that Sharma did not successfully complete the period of his probation and could not, therefore, be considered as a permanent employee. The Tribunal took the view that Sharma seems to be a permanent employee because his appointment appears to have been made on a permanent post. However, as I have already held above that the post of Canteen Incharge was not a permanent post but it was newly created on experimental basis and was a temporary post. The model standing orders would undoubtedly be binding on the management because of the provisions of Section 12A of the Act, as no certified standing orders have been issued by the Company. According to the Tribunal, a temporary appointment could be made on a post which, on the face of it is temporary, and the post of Canteen Incharge was not of temporary nature. But merely on account of his appointment on a non-temporary post, Sharma could not be considered to be a permanent employee and his employment on that post may be of temporary nature or at best as a probationer.
7. Learned counsel for the respondent relied upon the decision of their Lordships of the Supreme Court in Western India Match Company Ltd. v. Workmen 1973 SCC (L and S) 531, wherein it has been held that any agreement between an employer and the employee in contravention of the Standing Orders could not be enforced and on account of the provisions of Sections 440, and 13(2) of the Act, inconsistent parts of any special agreement cannot prevail over the Standing Order so long as the Standing Order is in force, it would be binding upon the Company as well as the workmen. To uphold the special agreement between the parties would result in giving a go-by to the principles of three party participation in the settlement of the terms of employment. Therefore, the inconsistent part of the special agreement is ineffective and unenforceable and it is not open to the employer to ignore the model standing order regulating terms of employment of the workmen. Any special agreement between the employer and an individual workman, inconsistent with the standing order, cannot be enforced. Thus the terms contained in the Model Standing Order, which was applicable on account of the provisions of Section 12A of the Act could not be contravened. Clause 17 of the Model Standing Orders, set out in Schedule I of the Rajasthan Industrial Employment (Standing Orders) Rules 1962 provides that for terminating the employment of a workman, whether permanent or temporary, sufficient reasons must be advanced and in the case of employees who have completed not less than one year of continuous service under an employer, retrenchment shall be governed by the law and procedure prescribed under the Industrial Disputes Act. Sharma stated in his reply to the writ petition as well as in his reply before the Tribunal that he had been in the employment of the Company for a period of more than 240 days. The Tribunal has also found that Sharma was under the employment of the Company for 9 months and 14 days, as he was appointed with effect from December 1, 1971 and his service was terminated with effect from September 14, 1972. But a reference to the provisions of Section 25F of the Industrial Disputes Act goes to show that a mere assertion that workman was under employment of the employer for a period of 240 days is not enough. Section 25F lays down that no workman employed in any industry, who has been in continuous service for not less than one year under an employer, shall be retrenched by that employer unless the conditions specified therein were complained with. Section 25B defines 'continuous service'. Sub-section (2) of Section 25B lays down that a workman, who is not in continuous service for a period of one year, shall be deemed to be an continuous service under the employer for period of one year if the workman has, during the period of 12 calender months preceding the date of termination of his service, actually worked under the employer for 240 days. It cannot be disputed that Sharma had not been in continuous service for a period of one year as he was employed with effect from December 1, 1971 and one year's continuous service would have been completed on November 30, 1971, but his service was terminated earlier with effect from September 14, 1972. As such, Sharma should have brought his case within clause (2) of Section 25B, by showing that he actually worked for 240 days during the 12 calender months preceding the termination of his service and then only he could have been deemed to have been in continuous service under the employer for a period of one year within the meaning of Section 25F. There is no assertion on the part of the workman that he actually worked under the Company for a period of 240 days. On the other hand his contention throughout has been that he has been in continuous service of the Company for more than 2 0 days, which could not bring his case within the provisions of Sub-section (2) of Section 25B. The Company on the other hand, asserted in its reply before the Tribunal dated December 4, 1979 (Annexure 9) that out of 288 days, during which Sharma was in employment of the Company, he was absent on 69 days and thus he did not actually work for 240 days under the Company. As Sharma did nipt meet the case of Company and has not asserted at any stage that he had actually worked for 240 days, he was not entitled to the benefit of the provisions of Section 25F. The Tribunal also did not grant relief to Sharma on the basis of breach of the provisions of Section 25F, but relief was granted to him on the ground that termination of bis service was illegal or inoperative because the necessary notice, as required under the Model Standing Orders, was not given
8. The Tribunal is right in holding that in the absence of certified Standing Orders of the Company, as required by the Industrial Employment (Standing Orders) Act, 1946, Section 12A of the Act would apply and the Model Standing order, set out in the Schedule to the Act, shall be applicable. But the Tribunal fell into error in holding that there are any model standing orders set out in the schedule of the Act. As a matter of fact, the schedule to the Act merely enumerates the matters which could be provided for in the Standing Orders under the Act, while the Model Standing Orders, which are fo remain into force by virtue of Section 12A of the Act until certified standing orders of the Company came into operation, are given in the schedule annexed to the Industrial Employment (Standing Orders) Rules. The Tribunal also fell into error in holding that Clause 13(1) of the Model Standing Orders given in the Schedule to the Industrial Employment (Standing Orders) (Central) Rules, 1946 would be applicable in the case of Sharma, The 1946 Rules are applicable to Union Territories and to industrial establishments under the control of the Central Government or to a railway administration or in a major port, mine or oilfield in any State. The Schedule I annexed to the Rules, contain the employees standing orders, which are applicable to the industrial establishments as specified in Rule 1(2). Clause 13 (1) and (2) of the Model Standing Orders are as under:
13. Termination of employment.--(1) For terminating employment of a permanent workman, notice in writing shall be given either by the employer or the workman one month's notice in the case of monthly-rated workman and two weeks' notice in the case of other workmen. One months' or two weeks' pay, as the case may be paid in lieu of notice
(2) No temporary workman whether monthly-rated, weekly-rated or piece rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him, in the manner prescribed in paragraph 14.
Thus, one month's notice is required to be given for terminating the service of a permanent workman, while in the case of termination of the service of other class of workman, such notice was not required to be given by the employer. As I have held above, Sharma was not a permanent workman and as such one month's notice was not required to be given to him in order to terminate his service.
9. The tribunal has also observed that the very manner in which the period of the employement of Sharma was extended indicates that the performance of bis work on the post of Canteen Incharge was satisfaction. In arriving at the aforesaid conclusion of Tribunal completely lost sight of the fact that while extending the period of employment of Sharma by the letter dated June 30, 1972,the management of the Company advised him to improve his performance. Moreover, as many as 10 letters were given to him by the management of the Company complaining about his absence from duty or negligence in performing his duties. Of course, Sharma has denied having received the aforesaid letters but he has not denied the allegations contained in those letters, about his having remained absent from duty. It has not been asserted by Sharma before the Tribunal or before this Court that the allegations contained in those 10 letters, sent by the Company from January 7, 1982 to July 6, 1972, were incorrect, or that he attended to his duties on the dates or during the periods when he is alleged to have remained absent from duty, by the Company, except in case of one date for which his explanation has been that he went out for purchasing goods for the canteen. Mere alleged non-receipt of the letters in question was not enough to disprove the allegations contained therein. There is no doubt that service of Sharma was extended by one month on the expiry of the initial period of six months. But when Sharma's service was thereafter extended, it was clearly mentioned by the Company that he should improve his performance. That is sufficient to show that the performance of Sharma on the post of Canteen Incharge was not satisfactory. The Company has advanced sufficient reason for terminiting the services of Sharma, namely, that his work was unsatisfactory as he was negligent in performing his duties. In my view, the Tribunal was not justified in holding that the working of Sharma as Canteen Incharge was satisfactory, merely on account of the fact that his service was extended 'until further instructions' by the Company; The Tribunal failed to take into consideration the fact that in the same letter, while extending the employment of Sharma until further instructions, the Company also asked him to improve his performance which show that his performance was not satisfactory but the Company still afforded him a further opportunity to improve his work instead of terminating his service at that very time. But it cannot be ignored that a warning was administered to Sharma while extending the period of his employment that he should improve his performance. The Tribunal has not considered the material placed before it in coming to the conclusion that Sharma's work on the post of Canteen Incharge was satisfactory, but has based its finding on the mere fact that the employment of Sharma was further extended by the Company, ignoring that he was given time to improve his performance, which indicated that his earlier performance was not satisfactory However, not much need be made out on account of unsatisfactory performance of his duties by Sharma, because the Company did not dispense with his service on the ground of unsatisfactory work. But his service has been terminated on the ground that the Company did not require the service of Sharma and while discharging Sharma from employment, the Company at the same time also abolished the post of Canteen Incharge. Thus, if the post has been abolished on which Sharma was working, the question of his continuance in service on the said post could not arise After September 14, 1972 there was no post of Canteen Incharge in the Company and the post of Supervisor was created in the lower grade, on the termination of the service of Sharma. Sharma could not have been asked to work on the lower post of Supervisor and as the post of Canteen Incharge ceased to exist on account of its abolition by the Company, his service was rightly terminated. Thus, no fault can be found with the termination of the service of Sharma, in the present case.
10. In the result, the writ petition is allowed and the order passed by the Central Government Industrial Tribunal cum Labour Court, Jabalpur dated April, 1974 is set aside. The parties are left to bear their own costs.